The
Ninth Amendment was authored originally by James Madison, as
part of
his commitment to seek amendments to the newly adopted
Constitution
that would define a “bill of rights". They began as suggested
amendments from each of the state ratifying conventions. Some of
those found their way into the somewhat more explicit articles 3
through 10, which, because the first two were not ratified at
the
time, became the first eight amendments. But it should not be
concluded that the suggested amendments that did not get adopted
in
something like their original form were rejected. Rather, it
seems
clear, Madison intended to consolidate them in what became the
Ninth
and Tenth Amendments. Let us examine the final wording adopted:

Article
the eleventh
[Amendment IX]

The enumeration in the Constitution, of certain
rights,
shall not be construed to deny or disparage others retained by
the
people.

Article
the
twelfth
[Amendment X]

The powers not delegated to the United States by
the
Constitution, nor prohibited by it to the States, are reserved
to the
States respectively, or to the people.

Madison’s original
proposed formulation of what became the Ninth Amendment
is:

The
exceptions here or elsewhere in the constitution, made in
favor of
particular rights, shall not be construed as to diminish
the just
importance of other rights retained by the people, or as
to enlarge
the powers delegated by the constitution; but either as
actual
limitations of such powers, or as inserted merely for
greater
caution.1

What
did Madison mean by “other rights", which are sometimes
called,
and disparaged, as the “unenumerated rights"? Disparaged by
some,
because it is not obvious from the text of the Constitution
what
those rights might be, or where they could be found, if not
in the
text.2
This article will seek to discover what those rights are,
and argue
that there are indeed clues in the text of the unamended
Constitution, and in the other amendments, proposed and
adopted, in
state constitutions, as well as in the historical evidence
leading to
the ratification.3

One
of the clues is found in the fact that some “rights" are
expressed as declarations, and some as restrictions on
delegated
powers.4
From this we can discern that in the Constitution and its
amendments,
public action is partitioned into delegated powers of
government and
rights against the positive acts of government.
Constitutional rights
are rights against public action by public officials.
Therefore, we
might more precisely call them “immunities", as they are
called
in the 14th Amendment. Immunities are the
complement of
delegated powers: Every delegated power is a restriction on
immunities, and every immunity is a restriction on delegated
powers.
Thus, a constitutional right, or immunity, can be expressed
either as
a declaration, or as a restriction on a power. The two modes
of
expression represent different ways of expressing the same
concept.567

Justice
Reed wrote in the 1947 case of United Public Workers v.
Mitchell:

The powers
granted by the Constitution to the Federal Government are
subtracted
from the totality of sovereignty originally in the states
and the
people. Therefore, when objection is made that the exercise
of a
federal power infringes upon rights reserved by the Ninth
and Tenth
Amendments, the inquiry must be directed toward the granted
power
under which the action of the Union was taken. If granted
power is
found, necessarily the objection of invasion of those
rights,
reserved by the Ninth and Tenth Amendments, must fail.8

In his remarks
introducing the proposed amendments that included the Bill of
Rights,
James Madison said:

In some instances they assert those rights which
are
exercised by the people in forming and establishing a plan of
Government. In other instances, they specify those rights which
are
retained when particular powers are given up to be exercised by
the
Legislature. In other instances, they specify positive rights,
which
may seem to result from the nature of the compact. Trial by jury
cannot be considered as a natural right, but a right resulting
from a
social compact which regulates the action of the community, but
is as
essential to secure the liberty of the people as any one of the
pre-existent rights of nature. In other instances, they lay down
dogmatic maxims with respect to the construction of the
Government;
declaring that the Legislative, Executive, and Judicial branches
shall be kept separate and distinct. Perhaps the best way of
securing
this in practice is, to provide such checks as will prevent the
encroachment of the one upon the other.

But
whatever may be the form which the several States have
adopted in
making declarations in favor of particular rights, the great
object
in view is to limit and qualify the powers of Government, by
excepting out of the grant of power those cases in which the
Government ought not to act, or to act only in a particular
mode.
They point these exceptions sometimes against the abuse of
the
Executive power, sometimes against the Legislative, and, in
some
cases, against the community itself; or, in other words,
against the
majority in favor of the minority.9

So
why, if this is so, do we need both the Ninth and Tenth
Amendments?10
The answer lies in the inherent ambiguity of the language
available
in which to express both rights and delegated powers. It is
easy to
construe written delegations of power more broadly than was
intended
by the framers of that language, and a right, expressed as
either a
declaration or a restriction on delegated power, may provide
a
convenient way to clarify the boundaries, from the opposite
side.
Legal language is not just denotative, with a
semantic mapping
to objects or concepts, but also evocative,
reminding the
reader of a complex web of ideas associated with historic
events and
the usage of the term, so that he may sometimes be more
likely to
clearly understand what is meant if the language is
expressed in the
terms of “rights", than if expressed in the terms of powers,
delegated or nondelegated.

Earlier in his
remarks
Madison explains:

It is
true, the
powers of the General Government are circumscribed, they are
directed
to particular objects; but even if Government keeps within
those
limits, it has certain discretionary powers with respect to
the
means, which may admit of abuse to a certain extent, in the
same
manner as the powers of the State Governments under their
constitutions may to an indefinite extent; because in the
Constitution of the United States, there is a clause
granting to
Congress the power to make all laws which shall be necessary
and
proper for carrying into execution all the powers vested in
the
Government of the United States, or in any department or
officer
thereof; this enables them to fulfil every purpose for which
the
Government was established. Now, may not laws be considered
necessary
and proper by Congress, for it is for them to judge of the
necessity
and propriety to accomplish those special purposes which
they may
have in contemplation, which laws in themselves are neither
necessary
nor proper; as well as improper laws could be enacted by the
State
Legislatures, for fulfilling the more extended objects of
those
Governments. I will state an instance, which I think in
point, and
proves that this might be the case. The General Government
has a
right to pass all laws which shall be necessary to collect
its
revenue; the means for enforcing the collection are within
the
direction of the Legislature: may not general warrants be
considered
necessary for this purpose, as well as for some purposes
which it was
supposed at the framing of their constitutions the State
Governments
had in view? If there was reason for restraining the State
Governments from exercising this power, there is like reason
for
restraining the Federal Government.11

He is saying that
the
delegations of power may seem to be broader than was intended,
and
declarations of rights may be needed to clarify the bounds on
those
delegations of power.

Madison further
explained in a letter to George Washington:

If a line
can
be drawn between the powers granted and the rights retained,
it would
seem to be the same thing, whether the latter to be secured
by
declaring that they shall not be abridged, or whether the
former
shall not be extended. If no such line can be drawn, a
declaration in
either form would amount to nothing.12

From
the amendments proposed by the ratifying conventions, and
rights
recognized in state constitutions, we can identify the
following as
some of what most people of the period would have recognized
as among
the “unenumerated rights":13

Right

Source

1

Writs in the name of
the People. Rights to the prerogative writs
such as quo warranto, habeas corpus,
mandamus, prohibito, procedendo,
and certiorari, which any person has the
right to prosecute on behalf of anyone else.14

The above is only
a
partial list, and a more complete list can be found in examining
the
other proposed amendments and bills of rights of the states
ratifying conventions, which are the ultimate authority for what
the
provisions of the U.S. Constitution meant when it was ratified,
and
the constitutions of the states at that time.

It is the thesis
of
this article that all of the rights recognized in the
declarations of
rights or proposed amendments of the state ratifying
conventions, and
in the state constitutions, can be presumed to have been
generally
recognized as rights throughout the thirteen states, and any
that
were not explicitly made one of the other amendments to the U.S.
Constitution must be considered as being included in the
unenumerated
rights of the Ninth Amendment.

From these we can
discern several key ideas:

The common law
prerogative writs, not limited to habeas corpus, are matters
of fundamental right, and not just privileges established by
statute, or susceptible to statutory restriction or
disablement.

Individuals have a right to
prosecute a public right, for such prerogative writs,
and for declaratory, injunctive, and performance relief.37

The essence of
these rights is the right to a presumption of nonauthority.
People have a right to challenge the authority of officials,
and the burden of proof is on the officials that they have
authority to do what they are doing or propose to do.

The right to
the presumption of nonauthority does not depend on the
support of a court, but defaults to a finding of
nonauthority even if a court declines to grant oyer and
terminer. All that is necessary is to file or notice the
court, notice the respondant, and wait the customary 3-20
days for the response. It is the respondant official who has
the right to oyer and terminer in such a case, to support
his claim of authority if he has such authority.

One of the
common law rights included is the right of demurrer, to
challenge the authority of a prosecution at the outset,
before trial is commenced, and this is also fundamental, and
not subject to statutory restriction or disablement.

The
unenumerated rights are not limited to the right to a
presumption of nonauthority, which is the basis for the
prerogative writs, but also include rights to the positive
duty of officials to report and disclose their activities,
and not resist such disclosure without strong justification.
They include the derivative rights to be assisted or
facilitated in prosecuting rights, or to have the means to
do so.

The natural
rights are those that arise out of the laws of nature, and
include the right to have official acts be logical,
reasonable, and rational. One may not be required to do the
impossible.

Delegations of
power are never plenary, but are further constrained, beyond
their subject matter, to what is reasonable and pursuant to
a legitimate public purpose.

It is a matter
of common right to engage in any occupation, not subject to
licensure or taxation, but only that acts committed in the
course of such occupation not be violations of law.

There is a
right not to be subjected to laws or official acts that are
unknown, unknowable, incomprehensible, or too vague to allow
for easy interpretation, or to have the rules governing
one’s behavior change adversely between the contemplation of
an action and the enforcement of the law or application of
the due process.

There is a
right not only not to have one’s rights legislatively
impaired, disabled, or disfavored, but also not to have some
accorded special privileges or protections that favor them
over the rest of the people, in ways not essential to the
performance of public duties. This means official immunity
for damages extends only to each act under color or law for
which an official has authority and that is not an abuse of
discretion, not to everything an official might do while on
the job.

There must
always be an effective remedy available for any infringement
of a right, one that is not made so time-consuming,
expensive or difficult to obtain as to make the right
meaningless as a practical matter. All fundamental rights
must have judicial remedies, not just political remedies,
because the political process is often inadequate to protect
the rights of individuals or minorities.

There is a
right not to be subject to laws one does not have the right,
with the consent of a grand jury, to prosecute or help
prosecute.

There is a
right to do one’s duty, and a duty to defend the rights of
others, as militia, as jurors, or in any similar capacity.
That means each has a duty to independently decide what is
an what is not lawful, and to resolve conflicts of laws, in
any situation with which one may be confronted. This duty is
inalienable, and may not be relinquished to others. The
exercise if judicial review by a judge in cases before him
is nothing more than the exercise of the general duty of
constitutional review which everyone has in situations they
encounter.

Part of the
right to trial by jury is the right to have the jury review
the decisions of the bench on issues of law before the
court, in reaching a general verdict. That means a right to
have all issues of law argued in the presence of the jury,
and to enable them to read all pleadings and laws involved
in the case.

There is a
right not to have officials take actions, under color of
delegated authority, that may be convenient or that may tend
to achieve the outcome sought by the exercise of a delegated
authority, but only to make the reasonable effort such a
delegation authorizes, which need not be sufficient to
attain the ends.

There is a
right to have delegated powers construed narrowly, and
complementary rights or immunities construed broadly, and
when in doubt, the decision must always be in favor of the
claimed right against an action of government over the
claimed power of an official to so act.

One can recognize
in
these precepts the principles of natural right and justice that
most
of us take for granted, or that are embedded in our public
processes,
but which are not always made explicit or stated as positive
rights.
That is what the Ninth and Tenth Amendments do, each in its own
way.

We
must also recognize, however, that access to remedies for
these
rights have undergone a substantial erosion over the last
two
centuries. This article is not to provide a thorough review
of all
the ways this has occurred. That would take many volumes. It
is to
provide an introduction to the evidence of what the Founders
meant by
the unenumerated rights, and how the most fundamental of
them, the
right to a presumption of nonauthority, is the foundation
for the
entire system of Anglo-American law and constitutional
government.38

Presumption
of Nonauthority

A search of the
literature will not find the phrase “presumption of
nonauthority",
except in writings that trace back to the author of this
article.
However, a search on phrases used in law that begin with
“presumption" yields several words that are synonyms of
nonauthority. Consider the following:

These
maxims indicate the ancient heritage of the principles being
discussed in this article.

If
we accept that powers are to be construed as narrowly as
the text
permits, and rights are the complement of powers, then it
follows
that rights are to be construed as broadly as the text
permits, and
in the event of any doubt, the decision must always be
against a
claimed power and in favor of a claimed right against the
exercise of
the claimed power. This means that “strict construction"
means
narrow for
powers and
broad for
rights, not
narrow for both.

It
also follows that it is never constitutional for any
branch or
official to defer to the judgment of other branches or
officials, to
presume the constitutionality or legitimacy of their
acts, other than
the specific exception made for the “full faith and
credit" of
the judicial acts of one state by another. Acts of the
legislature
must always be deemed unconstitutional unless or until
proved
otherwise. Likewise the acts of administrative or
executive branch
officials, or even of other courts, other than, perhaps,
courts
superior in the appeals hierarchy, for the same case
involving the
same parties and issues. This means that the only form
of stare
decisis that is
compatible with
the written Constitution is the weak form of persuasive
precedent, rather than the strong form of binding
precedent, such that a court might very well find a
dissenting
opinion more persuasive than a majority opinion. The
number of votes
a legal position gets on a multi-judge panel might be
enough for that
panel to decide a case, but not for anyone else. A
judicial panel is
not a legislative body, and its decisions are not
enactments of law,
only practices, which may or may not be consistent with
the
Constitution.

Some
confusion has arisen from the practice of the courts to
make
decisions not only as interpretations of a constitution
or statutes,
but as prudential or
equity
decisions, and
to frame those prudential or equity decisions in ways
that make them
appear to be constitutional interpretations. Many court
justices have
advocated that people reduce their tendency to look
to
politically weak courts to protect their rights, and to
refocus their
efforts on getting protection through the "political
branches",
legislative and executive. Many of the decisions of the
courts that
have seemed like contractions of rights have actually not
been
constitutional interpretations but "prudential" decisions,
for the convenience of the court, intended to push back on
the
tendency of the political branches to relinquish
responsibility for
constitutional compliance protection onto the courts, and
to force
people to seek redress through the political process
rather than
through litigation. Unfortunately, this practice becomes
deference by
the courts to the political branches, which can have the
practical
effect of allowing the delegation of both legislative and
judicial
authority to administrative officials, and be interpreted
by the
political branches, and eventually the courts themselves,
as
restrictions on constitutional rights. When officials of
all three
branches try to evade their duty to enforce the
Constitution, by
trying to push the duty off onto other branches, the
enduring result
is less likely to be activation of effective public demand
for
protection of their rights than expansion of the powers of
petty
tyrants too numerous, well organized, and well-funded to
be readily
overcome by diffuse public pressure.

Information needed to make public
decisions

A second major
category
of fundamental rights is the right to receive the information
needed
to make public decisions. Government officials are the agents of
the
people, and the people have a right to the information they need
to
be able to supervise them. As John Adams proclaimed:

Liberty
cannot be preserved without a general knowledge among the
people, who
have a right, from the frame of their nature, to
knowledge, as their
great Creator, who does nothing in vain, has given them
understandings, and a desire to know; but besides this,
they have a
right, an indisputable, unalienable, indefeasible, divine
right to
that most dreaded and envied kind of knowledge; I mean, of
the
characters and conduct of their rulers.42

One subright
within
this category is found in Art. I Sec. 5 Cl. 3:

Each House shall keep a Journal of its Proceedings,
and
from time to time publish the same, excepting such Parts as may
in
their Judgment require Secrecy; and the Yeas and Nays of the
Members
of either House on any question shall, at the Desire of one
fifth of
those Present, be entered on the Journal.

Virginia and North
Carolina did not consider this sufficient, and demanded the
keeping
of records and disclosure and publication of all public acts,
including those of the executive and judicial branches, as a
service
of government, not just by private parties. They did allow for
nondisclosure of unspecified national secrets, mainly those
related
to defense. They would not have accepted cover-ups of
wrongdoing.

Another is found
in
Art. I Sec. 9 Cl. 7:

No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement
and Account of the Receipts and Expenditures of all public Money
shall be published from time to time.

Virginia, North
Carolina, and New York did not consider this sufficient, and
demanded
disclosure and publication of all public receipts and
expenditures,
including those of the executive and judicial branches, also as
a
service of government. Note that there is no exception for
defense
budgets.

Under pressure
from
reformers Congress did adopt the Freedom of Information Act, and
many
states have adopted similar acts, often called “Open Records"
acts. However, severe impediments are often imposed, such as
requiring the requester to specify exactly what records he
wants, or
high copying fees. In some jurisdictions people have been
allowed to
search through the records themselves, but theft, destruction,
or
alternation of records by members of the public has led some
jurisdictions to require the research be done by staff, which
raises
the costs. In recent times many jurisdictions are requiring that
all
records be digitized and made available online, but most have
not yet
completed doing that for older records.

Litigation to
obtain
such information and documentation generally cites the
legislative
acts rather than one of the unenumerated rights, and thus
accepts the
restrictions of the legislation, but it would be appropriate to
cite
the unenumerated right, which would override the legislated
restrictions.

Access to remedies

A third major
category
of fundamental rights is making it convenient to effectively
seek
nonviolent remedies. There may be no right without a remedy, and
for
every right there might exist several remedies in principle, but
if
it is made too difficult for ordinary people to access those
remedies, the effect is the same as denial of the right.

Thus, although it
may
be a privilege stemming from government to be able to vote in an
election, perhaps restricted to adults who have resided in the
jurisdiction for a certain period of time, there are rights for
those
thus privileged to have polling places conveniently located, to
be
able to vote in secret, to have a preprinted ballot that is
easily
understood, to be able to vote for anyone constitutionally
qualified,
and to have one's votes accurately counted and reported within a
fairly short period of time. Congress may have pre-emptive power
to
regulate congressional elections, but that power is not plenary.
Like
all delegations of power, it is constrained to be reasonable and
for
a proper public purpose, and it would be unconstitutional for
Congress to exercise its power contrary to such rights.

Similarly, it is a
right for any person, especially those who can't afford an
attorney,
to seek redress for grievances, whether in a court, or in a
legislative or administrative process, and to have a fair chance
to
actually get redress if his cause has merit. The courts must not
become games in which only lawyers may play, because then only
lawyers can win.

Conclusion

Far
from being Robert Bork's “ink blot", there is a clear
historical
record that can enable us to identify unenumerated rights.
Moreover,
we can identify several broad categories or superrights
into
which those rights fall as subrights, enabling us to
identify
rights that were not specifically identified in the legacy
of the
Founders, but which can be reasonably inferred from them.

15"Provided,
That all commissions, writs, and processes, shall run in the
name of the people of the United States, and be tested in the
name of the President of the United States, or the person
holding his place for the time being, or the first judge of the
court out of which the same shall issue." New York Ratification
Debates, //www.constitution.org/rc/rat_ny.htm

16“10th. That
every freeman restrained of his liberty is entitled to a
remedy, to inquire into the lawfulness thereof, and to
remove the same, if unlawful, and that such remedy ought
not to be denied nor delayed." Virginia Convention Bill of
Rights, //www.constitution.org/rc/rat_va_23.htm

17“That every
Person restrained of his Liberty is entitled to an enquiry into
the lawfulness of such restraint, and to a removal thereof if
unlawful, and that such enquiry and removal ought not to be
denied or delayed, except when on account of Public Danger the
Congress shall suspend the privilege of the Writ of Habeas
Corpus." “That the Privilege of the Habeas Corpus shall
not by any Law be suspended for a longer term than six Months,
or until twenty days after the Meeting of the Congress next
following the passing of the Act for such suspension."
New York Ratification
Declaration, //www.constitution.org/rc/rat_decl-ny.htm

18"10. That
every freeman, restrained of his liberty, is entitled to a
remedy to inquire into the lawfulness thereof, and to
remove the same if unlawful; and that such remedy ought
not to be denied nor delayed." North Carolina Declaration
of Rights, //www.constitution.org/rc/rat_nc.htm

19"Resolved,
as the opinion of this committee, that all appeals from any
courts in this state, proceeding according to the course of the
common law, are to be by writ of error, and not otherwise." New
York Ratification Debates, //www.constitution.org/rc/rat_ny.htm

21"Provided,
That, whenever the privilege of habeas corpus shall he
suspended, such suspension shall in no case exceed the term of
six months, or until the next meeting of the Congress." New York
Ratification Debates, //www.constitution.org/rc/rat_ny.htm

22"12th. That
every freeman ought to find a certain remedy, by recourse
to the laws, for all injuries and wrongs he may receive in
his person, property, or character. He ought to obtain
right and justice freely, without sale, completely and
without denial, promptly and without delay; and that all
establishments or regulations contravening these rights
are oppressive and unjust." Virginia Convention Bill of
Rights, //www.constitution.org/rc/rat_va_23.htm

23"12. That
every freeman ought to find a certain remedy, by recourse
to the laws, for all injuries and wrongs he may receive in
his person, property,or character; he ought to obtain
right and justice freely without sale, completely and
without denial, promptly and without delay; and that all
establishments or regulations contravening these rights
are oppressive and unjust." North Carolina Declaration of
Rights, //www.constitution.org/rc/rat_nc.htm

24"1st. That
there are certain natural rights, of which men, when they
form a social compact, cannot deprive or divest their
posterity; among which are the enjoyment of life and
liberty, with the means of acquiring, possessing, and
protecting property, and pursuing and obtaining happiness
and safety." Virginia Convention Bill of Rights, //www.constitution.org/rc/rat_va_23.htm

25"1. That
there are certain natural rights, of which men, when they
form a social compact, cannot deprive or divest their
posterity, among which are the enjoyment of life and
liberty, with the means of acquiring, possessing, and
protecting property, and pursuing and obtaining happiness
and safety." North Carolina Declaration of Rights, //www.constitution.org/rc/rat_nc.htm

26"15th, That,
in criminal prosecutions, no man shall be restrained in
the exercise of the usual and accustomed right of
challenging or excepting to the jury." Virginia Convention
Proposed Amendments, //www.constitution.org/rc/rat_va_23.htm

27"16. That,
in criminal prosecutions, no man shall be restrained in
the exercise of the usual and accustomed tight of
challenging or excepting to the jury." North Carolina
Proposed Amendments, //www.constitution.org/rc/rat_nc.htm

28“Ninthly.
Congress shall at no time consent that any person holding an
office of trust or profit, under the United States, shall accept
of a title of nobility, or any other title or office, from any
king, prince, or foreign state." Massachusetts Convention
Proposed Amendments, //www.constitution.org/rc/rat_ma.htm

29"Resolved,
as the opinion of this committee, that the Congress shall at no
time consent that any person, holding any office of profit or
trust in or under the United States, shall accept of any title
of nobility from any king, prince, or foreign state." New York
Ratification Debates, //www.constitution.org/rc/rat_ny.htm

31"5th. That
the journals of the proceedings of the Senate and House of
Representatives shall be published at least once in every
year. except such {660} parts thereof, relating to
treaties, alliances, or military operations, as, in their
judgment, require secrecy." Virginia Convention Proposed
Amendments, //www.constitution.org/rc/rat_va_23.htm

32"5. That the
Journals of the proceedings of the Senate and House of
Representatives shall be published at least once in every
year, except such parts thereof relating to treaties,
alliances, or military operations, as in their judgment
require secrecy." North Carolina Proposed Amendments, //www.constitution.org/rc/rat_nc.htm

33"6th. That a
regular statement and account of the receipts and
expenditures of public money shall be published at least
once a year." Virginia Convention Proposed Amendments, //www.constitution.org/rc/rat_va_23.htm

34"Provided,
That. the words from time to time shall be so construed,
as that the receipts and expenditures of public money shall be
published at least once in every year, and be transmitted to the
executives of the several states, to be laid before the
legislatures thereof." New York Ratification Debates, //www.constitution.org/rc/rat_ny.htm

35"6. That a
regular statement and account of receipts and expenditures
of all public moneys shall be published at least once in
every year." North Carolina Proposed Amendments, //www.constitution.org/rc/rat_nc.htm

36“XV. That
all men have a natural inherent right to emigrate from one state
to another that will receive them, or to form a new state in
vacant countries, or in such countries as they can purchase,
whenever they think that thereby they may promote their own
happiness." Pennsylvania Constitution of 1776, //www.constitution.org/cons/pa/pa_1776.htm